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Full text of "In the House of Representatives, March 6th, 1840. The joint special committee to whom were referred the petition of James P. Boyce and 242 other legal voters of Lynn, and many other petitions similar in tenor ... praying that so much of ... the Revised Statutes as relates ... to intermarriage between white persons and Negroes, Mulattoes, of Indians, be erased therefrom ... report .."

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HOUSE....No. 46. 



CommcmumiW) of J^araactmsett^ 



In the House of Representatives, March 6th, 1840. 

The Joint Special Committee to whom were referred the peti- 
tion of James P. Boyce and 242 other legal voters of Lynn, 
and many other petitions similar in tenor or import, signed in 
all by 3,674 males, and 5,032 females, praying that so much 
of the fifth section of the seventy-fifth chapter, and first sec- 
tion of the seventy-sixth chapter of the Revised Statutes, as 
relates specially to intermarriage between white persons 
and negroes, mulattoes, or Indians, be erased therefrom, as 
being contrary to the principles of Christianity and republi- 
canism, have considered the subject so committed to them, 
and ask leave to 

REPORT. 

The Statute provisions specified in most of the above des- 
cribed petitions, are as follows : 

" No white person shall intermarry with a negro, Indian, or 
mulatto." Revised Statutes, ch. 75, sect. 5. 

" And all marriages between a white person and a negro, In- 
dian, or mulatto, shall, if solemnized within this State, be ab- 
solutely void, without any decree of divorce, or other legal 
process." Revised Statutes, ch. 76, sect. 1. 
1 



2 INTERMARRIAGES. [March, 

A part of the petitions which have come before the Commit- 
tee, do not set forth the above provisions, but simply pray that 
the Legislature will repeal all laws of the Commonwealth which 
make a distinction between its citizens on account of complex- 
ion. There is no doubt that the prayer of these last named 
petitioners is intended in part to apply to the provisions of law 
above set forth ; but it is proper to remark, that your Commit- 
tee have no evidence that the law does in fact make distinc- 
tions between citizens on account of complexion. The law 
prohibits the intermarriage of certain races ; and the circum- 
stance of color is merely one of the evidences by which the 
difference of race may be ascertained. It should be added that 
the prayer of said last named petitioners is also understood to 
refer in part to the exemption of colored persons from service 
in the militia of this Commonwealth ; but as that exemption 
appears to be in conformity with an act of Congress, which 
has the controlling power on the subject, your Committee have 
not thought it necessary to go into a further examination of 
that question, or to express an opinion thereon. 

According to the theory of our government and the letter of 
our Constitution, the races whose intermixture is prohibited by 
the statutes which have been quoted, are entitled to stand as 
citizens upon a footing of entire civil equality, and exempted 
from all partial disabilities. If the prohibition in question, has 
sprung merely from social prejudices or from the idea of ine- 
quality, or if it is invidious or unequal in its operation, or if it 
is calculated to facilitate injustice, or promote licentiousness, it 
ought not to continue longer upon the statute book. Your 
Committee believe that it is liable to all these objections — that 
it cannot be sustained, either upon the score of principle, or of 
utility ; and they therefore recommend its repeal. They are 
well aware of the strength of the social prejudice in which this 
law took its origin, and still finds its support ; but they have 
yet to learn that this Legislature will deliberately, and after full 
examination, sanction the principle that the tastes of the ma- 
jority shall be the measure of the rights of the minority, and 
that the spirit of caste shall be clothed with the authority of 



1840.] house—No. 46. 3 

law. The belief that God has created a degraded and embrut- 
ed race, to be trodden under foot forever by superior races, is 
hostile to the great doctrines of natural right and civil equali- 
ty, on which rest all hopes of liberty and progress for the 
masses of mankind. It is enough for those who hold such a be- 
lief, that the vigorous spirit of constitutional liberty, disdains to 
interdict the full expression and dissemination of their opin- 
ions ; but it is too much for them to ask that their hatred, or 
fear, or disgust at their fellow men, should be carried out in 
legislation, and enforced by penal enactments. Admit once 
the principle, that the law shall favor any particular class by 
reason of blood, color, or connexion, rather than of personal 
merit, and we return at once to the starting point, from which 
centuries of struggle have just succeeded in raising the human 
mind. 

Your Committee would not have thought it necessary to say 
a word on the point of the inequality of this law in its oper- 
ation, had not that inequality been repeatedly denied, by au- 
thorities entitled to respect. The argument on that side of the 
question is, that there is no inequality, because no restriction is 
interposed against the marriage of blacks with whites, which is 
not also interposed against the marriage of whites with blacks. 
The obvious answer is, that the law must-neeessarily bear hard- 
est upon the race which is lowest in social position, which is 
least numerous, least cultivated, least wealthy, and which has 
most to gain by forming ties that may connect its individuals 
with the intelligence, the cultivation, and the power of the 
stronger race. It may be noticed in this connection, that this 
form of oppression is not a new one. It has repeatedly been 
resorted to in past ages, by tyrants or bigots, who sought to 
separate the objects of their persecution from all those social 
influences which mitigate party strife and sectarian hatred. 
But that it was oppression, and was so meant, was never denied 
in any case till the present. In the histories of the reforma- 
tion, we find the prohibition, by the catholic authorities, of 
marriages between persons professing different religions, enu- 



4 INTERMARRIAGES. [March, 

merated and classed by the historian with those regulations 
which removed protestants from all public institutions and 
from acting as guardians to the young, deprived them of the 
rights of citizens, ordered that they should not be received as 
apprentices, &c. It was reserved for the astuteness of this day 
to discover, that what the common sense of mankind had for 
ages stigmatized as an act of persecution, was in fact no perse- 
cution or annoyance at all. 

Another objection to this law is, that it is invidious, in pro- 
hibiting but a single class out of many classes of what cannot 
in the harshest view be considered worse than merely incon- 
gruous or ill assorted matches. Nay, there are other cases in 
which the Legislature would be far better justified in interfer- 
ing, where yet, for reasons undoubtedly good, it does not in- 
terfere ; and the question still recurs, why should this instance 
continue a solitary illustration of the spirit of petty legislation. 
The very case suggested above, of marriages between persons 
violently opposed in religious opinions, would seem to make 
matrimonial disagreements and unhappiness quite as probable 
as where there is merely a difference of complexion, but a per- 
fect accord of disposition and affection. Nay, it would seem 
that a marriage between a native and an alien, that alien being 
of monarchical principles and Calmuck race, would be quite as 
proper a subject of prohibition, as a marriage between individu- 
als of different races, but alike children of the Commonwealth. 
But there are stronger cases. Men and women in whose blood is 
a scrofulous or consumptive taint, may legally marry, though 
their offspring will in all probability be puny, diseased, and 
short-lived ; men and women whose ancestors and connexions 
have been affected with frequent insanity, may intermarry, 
though the chances are more than equal, that the tendency to 
madness will thus be perpetuated from generation to genera- 
tion ; drunkards and debauchees are permitted to bring upon 
families the curse of domestic misery and infectious parental 
example, and still the Legislature does not dream of interfering 
with the free will of the selecting parties. Is it possible that 



1840.] HOUSE— No. 46. 5 

mere difference of complexion and race, is more important in 
reference to the marriage relation, than any or all the circum- 
stances above enumerated ? Ought not the Legislature to in- 
terfere in all these cases, if in any ? Is it not an absurdity that 
it should interfere in any way, except to enforce the Levitical 
law as to kindred, and to nullify marriage contracts entered in- 
to where either of the parties is not capable of assent ? 

Finally, the law has a tendency to facilitate injustice, and to 
promote licentiousness. In this connexion, the Committee 
would remark, that they do not recommend a repeal in the ex- 
pectation that the number of connexions, legal or illegal, be- 
tween the races, will be thereupon increased. They do not 
think that such will be the result. Their object is, that wher- 
ever such connections are formed, the usual civil liabilities and 
obligations should not fail to attach to the contracting parties. 
Let not the father be excused from supporting his children, on 
the plea that they are illegitimate. Let not the children be 
deprived of their inheritance, because the law prohibits mar- 
riage, and takes away the efficacy of the form, if pronounced. 
Let not the parents of different races be at liberty to desert each 
other on every trifling disgust. In other words, let the civil 
law do all that it was ever meant to do in cases of marriage, 
and no more ; that is to say, let it simply ratify the contract 
which the affections have made, and which God has therefore 
hallowed, in all cases except where there is a scriptural bar, or 
mental incompetency. Your Committee believe, that where 
there would be one case in which the repeal of the law would 
cause connexions to be formed, which otherwise would not 
have been formed, there would be twenty where the observance 
of fidelity, and the fulfilment of the civil obligations of mar- 
riage would be compelled, which would otherwise have been 
neglected. And this is not merely matter of speculative opin- 
ion, but it is well supported by facts, and by the experience of 
officers of towns and cities, who have been obliged to see their 
municipalities subjected to burdens which, but for this law, 
would not have been thrown upon them. 



6 INTERMARRIAGES. [March, 

It has been said, that this is a statute of decency : that de- 
cency forbids marriages between whites and blacks. It may 
be answered in the first place, that if it was meant for a statute 
of decency, it has lamentably failed in its object, if, as is be- 
lieved to be the case, it has promoted licentiousness by with- 
drawing the civil obligation from these connexions ; nor is it 
believed that Vermont, New Hampshire, and other neighboring 
States which have passed no such statute, will compare disad- 
vantageous^ with this Commonwealth, as it regards their state 
of public morals. On the abstract question, your Committee 
can find no authorities in the Holy Writ or elsewhere, to the 
point that individuals of any of the tribes of human beings cre- 
ated by God in his own image, may not intermarry with each 
other without the violation of any law, revealed or natural. 
Their tastes might be wounded by the apparent incongruity of 
such a union ; as they are every day wounded, with far more 
cause, by the occurrence of marriages between the very young 
and very old, the very brutal and very refined, between rich 
and doting bridegrooms, and purchased, but loathing brides. 
But, as they have heretofore remarked, they are not disposed 
to erect their own tastes into a law for the rest of their fellow 
citizens. 

Your Committee will reply to one other objection before 
closing their report. It seems to be admitted by many, that 
the law was a foolish one in its first enactment, but it is sug- 
gested, that a repeal at this time would do harm, as it would 
be received as evidence that the Legislature were disposed to 
look with particular favor on unions of this character. Your 
Committee do not perceive the propriety of assuming that the 
people will draw from the repeal an inference not warranted 
by the facts. The repeal implies merely, that the Legislature 
do not choose, or do not feel that they ought, to put any par- 
ticular race of citizens under peculiar disabilities ; and it is do- 
ing injustice to the intelligence and fairness of the people, to 
suppose that this can be tortured into a disposition to give such 
citizens any peculiar encouragements. The absurdity of such 



1840.] HOUSE— No. 46. 7 

a supposition, may be thus illustrated. The people of this 
State long since abolished the compulsory support of public 
worship ; but was it ever contended that they thereby expres- 
sed an opinion against the support of public worship ? Again, 
among the colonial statutes of Massachusetts Bay, was one 
which, after reciting that "it is against rule to seek to draw 
away the affections of young maidens, under pretence of pur- 
pose of marriage, before their parents have given way and al- 
lowance in that respect," and that " it is a common practice in 
divers places, for young men irregularly and disorderly to watch 
all advantages for their evil purposes, to insinuate into the af- 
fections of young maidens, by coming to them in places and 
seasons unknown to their parents for such ends, whereby much 
evil hath grown up to the dishonor of God, and damage of par- 
ties," goes on to provide penalties of fine and imprisonment 
against all such as shall " endeavor, directly or indirectly, to 
draw away the affection of any maid in this jurisdiction, under 
promise of marriage, before he hath obtained liberty and allow- 
ance from her parents, or governors, or, in absence of such, 
from the nearest magistrate." No law of this description is 
now to be found on the statute book of Massachusetts ; but 
would any person whose opinion was entitled to deference, ha- 
zard the expression of an opinion that by failing to re-enact 
that law, Massachusetts has virtually sanctioned and approved 
the practice of " drawing away the affections of maidens," 
without first obtaining liberty and allowance from their parents, 
governors, or the nearest magistrate ? There is no need of a 
labored argument to repel so shallow an inference. 

There is another view of the subject which has had weight 
in the minds of your Committee. This law is the last relic of 
the old Slave Code of Massachusetts, and is the only legislative 
recognition to be found in our statute book, of inequality among 
the different races of our citizens. It stands in direct and odious 
contrast with all our principles and our practice in other partic- 
ulars. It gives the lie to the sentiments which we have here- 
tofore expressed to Congress and to the world, on the subject 



8 INTERMARRIAGES. [March, 

of slavery ; for by denying to our colored fellow-citizens any 
of the privileges and immunities of freemen, we virtually as- 
sert their inequality, and justify that theory of negro slavery 
which represents it as a state of necessary tutelage and guardi- 
anship. Never were unjustifiable disgust and contempt more 
significantly expressed than by the enactment of a law which 
says by implication, that the most honest, intelligent and high- 
minded negro citizen is more loathsome and less fit for associa- 
tion, than the vilest and most depraved white citizen. 

In the history of legislation on this subject, it will not, per- 
haps, be irrelevant to remark, that some years since, in the 
House of Representatives, an attempt was made to new model 
the marriage-law of this Commonwealth ; and after a full discus- 
sion, that part of the old law which contained the clauses un- 
der consideration, was modified by striking out said clauses, by 
a large majority. The whole bill, however, was finally lost, 
and the subject has not since received much public attention 
till within a year or two. 

Your Committee ask leave to report the annexed bill. 

All which is respectfully submitted. 
For the Committee. 

GEORGE T. DAVIS, Chairman. 



1840.J HOUSE— No. 46. 



essmnuitiUse&itf) of $Wm8Utt}umttn* 



In the Year One Thousand Eight Hundred and Forty. 



AN ACT 

Relating to marriages between individuals of certain 

races. 

JdE it enacted by the Senate and House of Representatives, 
in General Court assembled, and by the authority of the same, 
as follows : 

1 So much of the fifth section of the seventy-fifth 

2 chapter, and of the first section of the seventy-sixth 

3 chapter of the Revised Statutes, as relates to mar- 

4 riages between white persons and negroes, indians, 

5 and mulattoes, isVfeereby repealed. 



\